Economon v. Barry-Pate Motor Co.

• Decision Date: 05 January 1925
• Docket Number: No. 4077.,4077.
• Citation: 3 F.2d 84,55 App. DC 143
• Parties: ECONOMON v. BARRY-PATE MOTOR CO., Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 143, 3 F.2d 84 (1925)

ECONOMON v. BARRY-PATE MOTOR CO., Inc.

No. 4077.

Court of Appeals of District of Columbia.

Submitted November 5, 1924.

Decided January 5, 1925.

T. M. Baker, of Washington, D. C., for appellant.

G. B. Craighill and C. B. Tebbs, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and BARBER, Judge of the United States Court of Customs Appeals.

BARBER, Acting Associate Justice.

This is an appeal from the Supreme Court of the District of Columbia. The relevant facts are as follows:

The appellant, plaintiff below, was rightfully standing on the sidewalk at or near the intersection of New Jersey avenue and N Street Northwest, in the city of Washington. An automobile of the defendant, operated by its employee, was proceeding northerly on New Jersey avenue and approaching said intersection. Another automobile driven by one Mrs. Rosenberg was moving eastwardly on N street, also approaching the same intersection. The automobiles collided, the front part of the Rosenberg car striking one of the rear wheels of the defendant's. The result was that the Rosenberg car swerved from its course northerly, ran upon the sidewalk, where the plaintiff was standing near a "car stop sign post," knocked her down, and injured her.

The declaration in substance alleged that the defendant's employee so carelessly operated the car he was driving as to cause the collision, and to cause the Rosenberg car to injure the plaintiff. Rosenberg was not joined as defendant, but was a witness in plaintiff's behalf, and gave her testimony by way of deposition. The verdict of the jury was for the defendant.

The first assignment of error relates to the exclusion of the following question asked of Rosenberg on her direct examination: "Do you mean to say that, had you attempted to stop that car, the car which you were driving, that moving car on New Jersey avenue (referring to defendant's car) would have collided with you?" The question was objected to as leading, as calling for a conclusion, and was excluded.

It is urged by plaintiff that, if Rosenberg had been permitted to answer this question, her answer might have given the jury more light as to defendant's responsibility for the accident, and that its exclusion tended to permit the jury to believe that the witness was unfamiliar with the operation of her automobile. She had, however, without objection, already testified that she had operated automobiles for six or seven years and was thoroughly familiar therewith. She had given her version as to how the accident occurred, saying, among other things, in substance, that when she first saw the defendant's automobile approaching the intersection she figured she had the right of way and could go ahead; thought she could get across without any trouble; that the defendant's employee, Jones, was coming up very fast; that he tried to swerve and pass in front of her in time to get by; that the collision happened before she had time to think; that the front of her car struck the back of his, catching her bumper and pulling her over to the sidewalk; that she did not attempt to avoid the collision by trying to stop her car, because the other car ran too close in front of her, and she knew, if she made a short turn, her automobile might turn over; that she tried to slack down; that she could have stopped almost instantly, certainly within four or five feet. We think the question was properly excluded.

But, passing this issue for the moment, we note that in the cross-examination of the witness the plaintiff got the benefit of her opinion on the subject-matter of the excluded question because, in answer to an interrogatory as to what she did just prior to the collision, she said: "I was just coming straight up N street, when I noticed this car coming down, and I knew, if I were to stop just as my car would stop, he (referring to defendant's employee) would hit me straight in the center, so I just tried to slack down just as much as I could at the time to come to a stop." We find no prejudicial error in the exclusion of this question.

The next assignment is based upon the refusal of the court to exclude a question asked of Mrs. Rosenberg on cross-examination as to whether she had any agreement or understanding with plaintiff's counsel that, if plaintiff did not sue her, she would appear as a witness for the plaintiff in a suit against this defendant? Her answer was, "No." This was proper cross-examination, as tending to show the witness' bias or interest, if any, in the case, and it may be noted that defendant offered no evidence to refute the same.

The court instructed the jury, pursuant to defendant's fifth prayer, as follows:

"The burden of proof is upon the plaintiff to establish negligence on the part of the defendant by a fair preponderance of the evidence, and if the jury find that the evidence in this case is so evenly balanced as to render it impossible for them to decide whether the alleged negligence of defendant's employee, Jones, or the alleged negligence of Mrs. Rosenberg, was the proximate cause of the injuries the jury is not to guess between such causes and return a verdict in favor of the plaintiff, but if the jury so finds, this is only one of the many cases in which the plaintiff fails in her proof and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs."

The plaintiff excepted thereto on the ground that the prayer failed to include any reference as to what the jury should find in the event they believed from the evidence that the accident was occasioned by both the defendant's employee and Mrs. Rosenberg, and that the prayer as granted tended to confuse the jury. This prayer was sound from the defendant's standpoint. Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361.

In addition to this, the court in its charge told the jury that, if they found that the defendant's employee and Mrs. Rosenberg, although acting independently, were negligent in the operation of...